UNITED STATES COURT OF APPEALS

Transcription

1 Case: /29/2012 ID: DktEntry: 8 Page: 1 of 55 NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN DARIANO, DIANNA DARIANO, ON BEHALF OF THEIR MINOR CHILD, M.D.; KURT FAGERSTROM, JULIE ANN FAGERSTROM, ON BEHALF OF THEIR MINOR CHILD, D.M.; KENDALL JONES, AND JOY JONES, ON BEHALF OF THEIR MINOR CHILD, D.G., Plaintiffs-Appellants, V. MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK BODEN, IN HIS OFFICIAL CAPACITY AS PRINCIPAL, LIVE OAK HIGH SCHOOL; AND MIGUEL RODRIGUEZ, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS ASSISTANT PRINCIPAL, LIVE OAK HIGH SCHOOL, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HONORABLE JAMES WARE Case No. CV JW APPELLANTS BRIEF WILLIAM J. BECKER, JR., ESQ. THE BECKER LAW FIRM ROBERT J. MUISE, ESQ. AMERICAN FREEDOM LAW CENTER OLYMPIC BLVD., STE. 400 P.O. BOX LOS ANGELES, CA ANN ARBOR, MI (310) (734) Affiliated Attorney with The Rutherford Institute and the Thomas More Law Center ERIN MERSINO, ESQ. THOMAS MORE LAW CENTER 24 FRANK LLOYD WRIGHT DRIVE P.O. BOX 393 ANN ARBOR, MI (734) Attorneys for Plaintiffs-Appellants

2 Case: /29/2012 ID: DktEntry: 8 Page: 2 of 55 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii STATEMENT OF JURISDICTION... 1 PRELIMINARY STATEMENT... 2 STATEMENT OF THE ISSUES... 6 STATEMENT OF THE CASE... 7 STATEMENT OF FACTS... 8 I. Defendants Restricted Plaintiffs Patriotic Clothing Based on Its Message... 8 II. Plaintiffs Message-Bearing Clothing Caused No Disruption III. Defendant Rodriguez Willingly Restricted Plaintiffs Freedom of Speech IV. The 2009 Incident Did Not Justify the Speech Restriction V. School District Policy and Guidelines Authorized the Speech Restriction SUMMARY OF THE ARGUMENT ARGUMENT I. Standard of Review II. Defendants Speech Restriction Violated the First Amendment A. Defendants Restricted Plaintiffs Speech Based on Its Message i

3 Case: /29/2012 ID: DktEntry: 8 Page: 3 of 55 B. Tinker Compels Reversal Below III. IV. Defendants Speech Restriction Violated the California Constitution Defendants Speech Restriction Violated the Equal Protection Clause V. The School District s Speech Restriction Guidelines Violate Due Process VI. Declaratory and Injunctive Relief Against the School District Are Justified CONCLUSION STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ii

4 Case: /29/2012 ID: DktEntry: 8 Page: 4 of 55 Cases TABLE OF AUTHORITIES Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963)... 4 Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000)... 43, 44 A.M. v. Cash, 585 F.3d 214 (5th Cir. 2009) Ambach v. Norwick, 441 U.S. 68 (1979)... 4 Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008)... 2, 37 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) Boos v. Barry, 485 U.S. 312 (1988) Brandon v. Holt, 469 U.S. 464 (1985) Cal. Teachers Ass n v. Governing Bd. of San Diego Unified Sch. Dist., 45 Cal. App. 4th 1383 (1996) Carey v. Brown, 447 U.S. 455 (1980) Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006) iii

5 Case: /29/2012 ID: DktEntry: 8 Page: 5 of 55 City of Lakewood v. Plain Dealer Publ g Co., 486 U.S. 750 (1988) City of Mesquite v. Aladdin s Castle, Inc., 455 U.S. 283 (1982) Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir. 2003) Cohen v. Cal., 403 U.S. 15 (1971)... 30, 31 Consol. Edison Co. of N.Y. v. Public Serv. Comm. of N.Y., 447 U.S. 530 (1980) Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985) Ctr. For Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep t, 533 F.3d 780 (9th Cir. 2008) Defoe ex rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010)... 2 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) Ex Parte Young, 209 U.S. 123 (1908) Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007) Forsyth Cnty. v Nationalist Movement, 505 U.S. 123 (1992)... 31, 41 Grayned v. City of Rockford, 408 U.S. 104 (1972)... 39, 40 iv

6 Case: /29/2012 ID: DktEntry: 8 Page: 6 of 55 Hills v. Scottsdale Unified Sch. Dist. No F.3d 1044 (9th Cir. 2003)... 4 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) Kentucky v. Graham, 473 U.S. 159 (1985) Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589 (1967) Lewis v Wilson, 253 F3d 1077 (8th Cir. 2001) McCollum v. Bd. of Educ., 333 U.S. 203 (1948)... 3 Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972) Porter v. Cal. Dept. of Corrections, 383 F.3d 1018 (9th Cir. 2004) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979) Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)... 30, 32 Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032 (9th Cir. 1999) Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003)... 2 v

7 Case: /29/2012 ID: DktEntry: 8 Page: 7 of 55 Snyder v. Phelps, 131 S. Ct (2011) Street v. N.Y., 394 US 576 (1969) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)... passim Tx. v. Johnson, 491 U.S. 397 (1989)... 3, 29, 30 United States v. W.T. Grant Co., 345 U.S. 629 (1953)... 43, 44 West v. Derby Unified Sch. Dist. No. 260 F.3d 1358 (10th Cir. 2000)... 2 W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)... 5 Statutes 28 U.S.C U.S.C U.S.C U.S.C. 1367(a) U.S.C , 7 vi

8 Case: /29/2012 ID: DktEntry: 8 Page: 8 of 55 STATEMENT OF JURISDICTION On June 23, 2010, Plaintiffs filed a Complaint for nominal damages and declaratory and injunctive relief pursuant to 42 U.S.C. 1983, challenging Defendants speech restriction under the United States and California Constitutions. (R-1; ER ; Vol. III [Compl.]). 1 The district court had jurisdiction of the federal claims pursuant to 28 U.S.C and 1343, and it had supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. 1367(a). On August 29, 2011, the parties filed cross-motions for summary judgment. (R-53, 54). On November 8, 2011, the court denied Plaintiffs motion and granted Defendants motion as to all claims, (R-67; ER-3-18; Vol. I [Order at 1-16]), and judgment was entered in favor of Defendants, (R-68; ER-1; Vol. I [Judgment]). On November 22, 2011, Plaintiffs filed a timely Notice of Appeal. (R-69; ER-20-21; Vol. II [Notice of Appeal]). This appeal is from a final order and judgment that disposes of all parties claims. This court has jurisdiction pursuant to 28 U.S.C ER refers to the Appellants Excerpts of Record. 1

9 Case: /29/2012 ID: DktEntry: 8 Page: 9 of 55 PRELIMINARY STATEMENT This case challenges Defendants restriction on Plaintiffs right to express a peaceful and passive patriotic message by wearing t-shirts depicting the American flag on a public high school campus in California. On May 5, 2010, Defendants prevented Plaintiffs from doing so, in violation of the United States and California Constitutions. Without exception, the celebration of the American flag should be protected no less than its desecration. Indeed, it is a poor lesson in American civics to ban the American flag as a polarizing racist pariah when competing symbols of nationhood are at issue. Unlike the Confederate flag, the American flag is not and should not be viewed as a symbol of racism. Blocking the display of the Confederate flag in a public school, as in the cases relied upon below, is at least nominally justified by the fact that many people view that flag as a symbol of race hatemongering. 2 No such claim can be made about the American flag in an American public school. 2 In upholding Defendants ban on the American flag, the district court cited to cases that upheld bans on the Confederate flag in public schools with a history of racial tensions leading to disturbances. (R-67; ER-10; Vol. I [Order at 8-9, n. 20 (citing Barr v. Lafon, 538 F.3d 554, 567 (6th Cir. 2008) (holding the connection between the symbolism of the Confederate flag and racial tensions at the school meant that the Confederate flag would likely have a disruptive effect on the school ); Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003) (same); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000) (same)]); see also Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 339 (6th Cir. 2010) 2

10 Case: /29/2012 ID: DktEntry: 8 Page: 10 of 55 In fact, the American flag symbolizes unity and promotes a public school s goal of providing students opportunities to celebrate their cultural heritages. Proudly overcoming the flames that briefly enveloped it, the history and heritage of our star spangled banner has found unanimous Supreme Court respect as the symbol of nationhood and national unity. See Tx. v. Johnson, 491 U.S. 397, 413 (1989); see also id. at 427, 429 (Rehnquist, C.J., dissenting) (amplifying the concept); Id. at 436 (Stevens, J., dissenting) (adopting the phrase and amplifying the concept). A student s patriotic pride in the flag and the unity it heralds does not attack other cultures and should not be discouraged as somehow representing a symbol of divisiveness let alone violence. American public schools cannot logically ban the American flag for any duration or reason. Such a ban contradicts the fundamental objectives of our public school system. Indeed, the Supreme Court has repeatedly recognized the role of public education as a unifying social force and the basic tool for shaping democratic values. As noted by the Court, a public school is the most powerful agency for promoting cohesion among a heterogeneous democratic people... at once the symbol of our democracy and the most pervasive means for promoting our common destiny. McCollum v. Bd. of Educ., 333 U.S. 203, 216 (1948). (Rogers, C.J., concurring) (stating the Confederate flag on a t-shirt is doubtless perceived by many, if not most, student viewers in today s high schools in the United States as a statement of racial hostility comparable to a slogan that says Blacks should be slaves or Blacks are inferior ). 3

11 Case: /29/2012 ID: DktEntry: 8 Page: 11 of 55 Public schools represent a most vital civic institution for the preservation of a democratic system of government, Abington Sch. Dist. v. Schempp, 374 U.S. 203, 230 (1963), and are the primary vehicle for transmitting the values on which our society rests, Ambach v. Norwick, 441 U.S. 68, 76 (1979). Thus, public schools should inculcate fundamental values necessary for the maintenance of a democratic political system. As a result, America s pre-eminent symbol of principled unity and pride the American flag should not have to be stowed away in students lockers on days designated to celebrate the nationalistic pride of any other nation or culture. If these precedents have any practical meaning, then school officials anticipating any form of discomfort from competing political views should be prepared to inculcate in their student populations the spirit and magnificence of the First Amendment s place in the shaping of democratic values. Cf. Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1055 (9th Cir. 2003) (stating that it is far better to teach students about the First Amendment... about why we tolerate divergent views than to suppress speech and noting that [t]he school s proper response is to educate the audience rather than squelch the speaker ) (internal quotations and citation omitted). This means respect for the flag, respect for the Nation, and respect for the speech rights of all American students. Promoting divisive policies that exalt 4

12 Case: /29/2012 ID: DktEntry: 8 Page: 12 of 55 hostility to national pride subverts the vital role that public schools are meant to serve, and it undermines indeed violates fundamental constitutional principles. As noted, the Supreme Court has repeatedly acknowledged the public school systems role as a unifying force a basic tool for shaping democratic values and cohesion within a culturally and racially diverse student body and a means for promoting our common destiny. Defendants decision to censor the display of the American flag challenges indeed, it contravenes that goal. In W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the Court spoke directly to the Nation s educators, recalling their mission to teach civics by example: That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. Id. at 637. And consistent with this scrupulous protection of constitutional freedoms, the Court further emphasized that [i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. Id. at 642 (emphasis added). Here, when Defendants prohibited Plaintiffs from wearing t-shirts depicting images of the American flag at Live Oak High School on May 5, 2010 (Cinco de Mayo), that fixed star in our constitutional constellation was obscured and an official orthodoxy proscribed. 5

13 Case: /29/2012 ID: DktEntry: 8 Page: 13 of 55 In sum, because the decision below does not scrupulously protect fundamental constitutional rights, it must be reversed. STATEMENT OF THE ISSUES I. Whether Defendants content- and viewpoint-based restriction on Plaintiffs peaceful, passive, patriotic expression of speech that caused no disruption on their public high school campus violated the First Amendment to the United States Constitution and article I, section 2 of the California Constitution. II. Whether Defendants restriction on Plaintiffs peaceful, passive, patriotic expression of speech conveying a pro-america viewpoint while permitting other students to engage in speech conveying a pro-mexico viewpoint violates the Equal Protection Clause of the Fourteenth Amendment. III. Whether Defendants dress code guidelines, which were the moving force behind the constitutional violations at issue and which contain a broad invitation to subjective and discriminatory enforcement, are facially invalid and/or invalid as to their application to Plaintiffs peaceful, passive, patriotic expression of their pro-america viewpoint. IV. Whether Plaintiffs are entitled to prospective declaratory and injunctive relief to prohibit School District officials from enforcing their unlawful speech restriction. 6

14 Case: /29/2012 ID: DktEntry: 8 Page: 14 of 55 STATEMENT OF THE CASE On June 23, 2010, Plaintiffs filed a Complaint for nominal damages and declaratory and injunctive relief pursuant to 42 U.S.C. 1983, challenging Defendants speech restriction under the United States and California Constitutions. (R-1; ER ; Vol. III [Compl.]). Specifically, Plaintiffs are challenging Defendants restriction on their right to peacefully express a patriotic message on their high school campus by wearing t-shirts depicting the American flag. On September 2, 2010, Defendants moved to dismiss the Complaint for lack of subject matter jurisdiction. (R-12). The court granted Defendants motion in part and denied it in part. (R-36). Specifically, the court denied Defendants request to dismiss Plaintiffs claims for declaratory and injunctive relief on mootness grounds; it denied Defendants request to bar Plaintiffs claims for nominal damages against the individual Defendants on Eleventh Amendment immunity grounds; and it denied Defendants claim that Plaintiff M.D. lacked standing. The court granted Defendants request to dismiss the parent plaintiffs individual claims for the violation of their own First Amendment rights. (R-36). On August 29, 2011, the parties filed cross-motions for summary judgment. (R-53, 54). During the pendency of these motions, Defendant Nick Boden filed for 7

15 Case: /29/2012 ID: DktEntry: 8 Page: 15 of 55 bankruptcy. Consequently, the case has been stayed as to the claims against him in his individual capacity. (R-67; ER-3; Vol. I [Order at 1, n.2]). On November 8, 2011, the court denied Plaintiffs motion and granted Defendants motion as to all claims, (R-67; ER-3-18; Vol. I [Order at 1-16]), and judgment was entered in favor of Defendants, (R-68; ER-1; Vol. I [Judgment]). On November 22, 2011, Plaintiffs filed a timely Notice of Appeal. (R-69; ER-20-21; Vol. II [Notice of Appeal]). This appeal follows. STATEMENT OF FACTS I. Defendants Restricted Plaintiffs Patriotic Clothing Based on Its Message. Plaintiffs are three students who attend Live Oak High School, which is a school within Defendant Morgan Hill Unified School District (hereinafter School District ). (R-37; ER-462; Vol. III [Answer at 8-10]). On May 5, 2010, Plaintiffs and two other students wore to school various items of clothing (t-shirts, shorts, shoes) which had depictions of the American flag or American-flag like motifs (i.e., stars and stripes). 3 (R-1; ER-251, ; Vol. III [Compl. at 14, Exs. 1, 2, 3]; R-37; ER-463; Vol. III [Answer at 14]). That day, some students at the school were celebrating the Mexican holiday known as Cinco de Mayo. School 3 This clothing specifically included the t-shirts depicted in Exhibits 1 through 3 attached to the Complaint. (R-1; ER-251, ; Vol. III [Compl. at 14, Exs. 1, 2, 3]; R-37; ER-463; Vol. III [Answer at 14 ( Defendants admit that pictures of the T-shirts worn by the student Plaintiffs on May 5, 2010 are attached to the Complaint as Exhibits 1 through 3. )]). 8

16 Case: /29/2012 ID: DktEntry: 8 Page: 16 of 55 officials approved the Cinco de Mayo celebration, which was co-sponsored by M.E.Ch.A, a school-sanctioned student group. 4 (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]). The students participating in the celebration were permitted to wear clothing that had the colors of the Mexican flag. (R-52; ER-406; Vol. III [Boden Dep. at 57 at Ex. 4 ( Q: Was there any prohibition on any of these dancers that were engaged in these Cinco de Mayo activities from wearing any clothing that had colors of the Mexican flag? A: No. )]; see also R-52; ER-352; Vol. III [Rodriguez Dep. at 117 (acknowledging seeing the Mexican flag painted on students on May 5, 2010) at Ex. 1)]). During the brunch break, and as instructed by the school s Principal, Defendant Boden, the school s Assistant Principal, Defendant Rodriguez, approached the Plaintiffs and two other students and directed them to turn their American flag t-shirts inside out. (R-37; ER ; Vol. III [Answer at 20 4 M.E.Ch.A. is an acronym that stands for movimiento [movement] estudiantil [student] Chicano [an ethnic identity] and Aztlan [referring to the mythical homeland of the Aztecs]. (R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). Chicanismo is a term that includes as part of its definition a personal decision to reject assimilation and work towards the preservation of [the Chicano] cultural heritage. (R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). In other words, M.E.Ch.A, by its very name, is a student movement that rejects the assimilation of Chicanos into American culture. (See also R-52; ER ; Vol. III [Dep. Ex. 15 at Ex. 2]). According to the M.E.Ch.A. club s Charter/Constitution that was filed with school officials at Live Oak High School, the purpose of the club is, in part, to support students who have a desire to keep up their own culture & customs. (R-52; ER-377; Vol. III [Club Charter / Constitution at Ex. 3) (emphasis added)]). 9

17 Case: /29/2012 ID: DktEntry: 8 Page: 17 of 55 ( Defendants admit that Defendant Rodriguez spoke with the student Plaintiffs during a morning break and asked them to turn their T-shirts, which included depictions of the American flag, inside out. )]). Defendants were responding to complaints from some students described by Defendant Rodriguez as Mexican American or Mexican students. 5 (R-52; ER-392, ; Vol. III [Boden Dep. at 33, at Ex. 4]; R-52; ER-330, , ; Vol. III [Rodriguez Dep. at 50, 56, 57, 59, at Ex.1 (emphasis added)]). When Plaintiffs refused, Defendant Rodriguez directed them to go with him to his office. Plaintiffs complied. (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-37; ER ; Vol. III [Answer at 20]). Plaintiffs were singled out by Defendants Rodriguez and Boden because they were wearing clothing that depicted the American flag. (R-52; ER , ; Vol. III [Boden Dep. at 40, 41 (citing to the red, white, and blue color scheme and flag implications of Plaintiffs clothing); (stating that the depiction of the flag was very very large ; that it was blatant and prominent ) at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]; R-37; ER ; Vol. III [Answer at 20]). 5 Indeed, the fact that Defendant Rodriguez referred to the complaining students as Mexican American or Mexican students is troubling, and it is indicative of the separatist view that created in his mind and likely in the mind of Defendant Boden as well discomfort with having Plaintiffs wear American flag t-shirts in school on Cinco de Mayo. 10

18 Case: /29/2012 ID: DktEntry: 8 Page: 18 of 55 After receiving a call from her son, Ms. Diana Dariano, the mother of Plaintiff M.D., arrived at the school and addressed the matter with Defendant Rodriguez. Other parents soon arrived, and a meeting was held with Defendant Boden. (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-37; ER-464; Vol. III [Answer at 26, 28]). During this meeting, Defendants Boden and Rodriguez made it clear that they objected to Plaintiffs American flag clothing because they believed that its message would offend Mexican students on campus since it was Cinco De Mayo. (R-52; ER-392; Vol. III [Boden Dep. at 33 (referring to a group of Mexican students that were questioning Plaintiffs American flag clothing), ( [T]here was a number of our Hispanic students who had indicated already that they were questioning why [Plaintiffs] were able to [wear their American flag clothing]. ) at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at ( So these Mexican students called me over and they asked me in reference to the boys, part of the... plaintiffs and other students in the center of the quad. And their question to me was, why do they get to wear the American flag when we don t get to wear our flag?) (emphasis added); (admitting that the restriction was based on the reaction that some students might have to Plaintiffs flag shirts), see also at Ex. 1)]). Indeed, one Defendant claimed during this meeting that Plaintiffs message was objectionable because this is their [i.e., Mexicans ] day, referring 11

19 Case: /29/2012 ID: DktEntry: 8 Page: 19 of 55 to Cinco De Mayo, an important day in [Mexican] culture. 6 (R-52; ER-400; Vol. III [Boden Dep. at 47 at Ex. 4]; see also R-52; ER ; Vol. III [Rodriguez Dep. at ( [T]he fact that it was Cinco de Mayo that day, I asked them, Why today out of all days? Why today? ) at Ex. 1]). After being detained for over 90 minutes, Plaintiff M.D. and the two nonplaintiff students were permitted to return to class because, according to Defendant Boden, the depiction of the American flag on their clothing was not as large or as blatant and prominent as the flag depictions on the clothing worn by Plaintiffs D.M. and D.G. (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at (admitting that they were allowed to go back because the clothing that they wore was not explicitly American flags ) (emphasis added) at Ex. 1]; R-37; ER-464; Vol. III [Answer at 29 (admitting that Defendant Boden permitted Plaintiff M.D. to return to class after approximately ninety minutes without requiring him to turn his shirt inside out)]). Nevertheless, Ms. Dariano removed her son, Plaintiff M.D., from school because she was concerned that the school was creating a pro-mexican/anti-american atmosphere and that would subject her son to further discrimination. (R-26-1; ER ; Vol. III [Dariano Decl. at 11]; see also R-37; ER-465; Vol. III [Answer at 31]; R-52; 6 According to Defendant Boden, during this meeting he and Defendant Rodriguez wanted to make sure also that there was an understanding of the importance, the cultural significance of Cinco De May to our Hispanic students. (R-52; ER- 398; Vol. III [Boden Dep. at 45 at Ex. 4) (emphasis added)]). 12

20 Case: /29/2012 ID: DktEntry: 8 Page: 20 of 55 ER ; Vol. III [Rodriguez Dep. at (warning the students returning to class to be respectful of the Cinco De Mayo activities that were to occur during lunch that day) at Ex. 1]). Because the depiction of the American flag on the clothing worn by Plaintiffs D.M. and D.G was very, very large, blatant and prominent, Defendant Boden directed them to change clothing, turn their shirts inside out, cover them up, or go home. (R-52; ER , 404; Vol. III; [Boden Dep. at 50-51, 54 at Ex. 4]; R-52; ER-353, ; Vol. III; [Rodriguez Dep. at 120, at Ex. 1]; R-37; ER ; Vol. III [Answer at 30 ( Defendants admit that Defendant Boden told Plaintiffs D.M. and D.G. that they had to turn their T-shirts inside out or leave school for the day.... )]). Plaintiffs refused to change or remove their flag clothing. Accordingly, they were required to leave school with their parents. (R-52; ER-405; Vol. III [Boden Dep. at 55 at Ex. 4]; R-52; ER-353; Vol. III [Rodriguez Dep. at 120 at Ex. 1]). II. Plaintiffs Message-Bearing Clothing Caused No Disruption. On May 5, 2010, the school day at Live Oak High School began as usual, with zero period commencing around 7:00 a.m., followed by first period, which began at approximately 8:00 a.m., and then second period, which began at approximately 9:00 a.m. and ended at approximately 10:05 a.m. Second period is the homeroom period, so it has an extra ten minutes added. Following second 13

21 Case: /29/2012 ID: DktEntry: 8 Page: 21 of 55 period is brunch break, which runs from approximately 10:05 a.m. to 10:20 a.m. (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER-327; Vol. III [Rodriguez Dep. at 42 at Ex. 1]). As noted above, it was during brunch break when Defendant Rodriguez confronted Plaintiffs, demanded that they turn their pro-america shirts inside out, and upon their refusal, directed them to his office. (R-37; ER ; Vol. III [Answer at 20]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). Prior to restricting Plaintiffs patriotic message, school officials had no information that Plaintiffs speech had caused any disruption whatsoever at the school, even though students had been on campus for over 3 hours and attended at least two classroom periods as well as homeroom. Defendant Boden testified as follows: Q: Did you receive any information that prior to 10:15, that there had been any violence on campus as a result of the clothing that the student plaintiffs were wearing? A: No. Q: Were you aware of any classes that were changed or canceled as a result of the clothing that the student plaintiffs were wearing? A: No. Q: So prior to 10:15, is it your understanding that it was a fairly normal school day... classes running as scheduled? A: Yes. (R-52; ER ; Vol. III [Boden Dep. at 32-33; see also 59 (stating that the school day went as planned ) at Ex. 4]). Defendant Rodriguez testified similarly: 14

22 Case: /29/2012 ID: DktEntry: 8 Page: 22 of 55 Q: Is there anything that you saw [Plaintiffs] doing that caused you to believe that they were causing a disruption on the campus at that time? A: No. Q: Prior to your making contact with these student plaintiffs, are you aware if there was any prior class, even zero period, first period, or second period that was cancelled because of any activities that these plaintiffs were involved in? * * * * A: I don t know. Q: Do you know if there was any class that actually didn t start on time or was disrupted in any way, zero period, first period or second period because of any activities of these plaintiffs that we have been referring to? A: I don t know. * * * * THE WITNESS: I don t know that fact. Q: Did anyone tell you, prior to when you first made contact with these plaintiffs during brunch break on May 5th, 2010, that these students were involved in any activity that caused any disruption on the campus? A. No. (R-52; ER ; Vol. III [Rodriguez Dep. at (emphasis added); see also 84, at Ex. 1]). In sum, Defendants Boden and Rodriguez intentionally restricted Plaintiffs speech on May 5, 2010, because they believed that the message conveyed by Plaintiffs patriotic clothing would offend some Mexican students since it was Cinco de Mayo (i.e., their day ). (R-52; ER-392, 398, 400, ; Vol. III [Boden Dep. at 33, 45, 47, at Ex. 4]; R-66; ER-87-88; Vol. II [Smith Dep. At at Ex. C]; R-52; ER-427; Vol. III [Smith Dep. at 43 at Ex. 5]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). Defendants enforced the 15

23 Case: /29/2012 ID: DktEntry: 8 Page: 23 of 55 clothing restriction even though they had no objective evidence that Plaintiffs were causing any disruption let alone a material and substantial one to the operation of the school. (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). III. Defendant Rodriguez Willingly Restricted Plaintiffs Freedom of Speech. Defendant Rodriguez willingly assisted, cooperated and agreed with, and carried out the decision to restrict Plaintiffs speech. Defendant Rodriguez testified as follows: Q: Did you agree with [Defendant Boden s] direction [to have Plaintiffs turn their shirts inside out and/or take them off]? * * * * A: To the extent that I carried out his directions, yes. * * * * Q: Did you ever express to Mr. Boden that you thought this could be violating any of the students rights? * * * * A: I did not. Q: Did you have any concerns that this direction was going to violate any of the students rights? A: No, I did not. (R-52; ER-338; Vol. III [Rodriguez Dep. at 77 at Ex. 1; see also at Ex. 1 (testifying that he believed it was a correct decision)]). IV. The 2009 Incident Did Not Justify the Speech Restriction. While testifying on behalf of the School District, the Superintendent candidly admitted that he can find no evidence that [the 2009 incident involving 16

24 Case: /29/2012 ID: DktEntry: 8 Page: 24 of 55 some Mexican students] was related to [the 2010 restriction on Plaintiffs speech]. (R-59; ER-281; Vol. III [Smith Dep. at 35 at Ex. 12]). As the Superintendent testified, I m aware of the incidents and can t say with any certainty how one affected the other. (R-59; ER ; Vol. III [Smith Dep. at at Ex. 12) ( I think what I said was I couldn t say with any certainty that one was causal of the other. )]). Nonetheless, the 2009 incident at Live Oak High School provides no lawful justification for the speech restriction at issue here. As Defendant Boden testified, in 2009, a group of Hispanic students paraded around the campus with a Mexican flag during lunch. (R-59; ER ; Vol. III [Boden Dep. at at Ex. 13]). The students were confrontational, which caused approximately [f]ive minutes of commotion during the lunch period. (R-59; ER-289; Vol. III [Boden Dep. at 30 at Ex. 13]). No student was disciplined as a result of this incident. No violence occurred as a result of this incident. No classes were canceled as a result of this incident. No classes were delayed or changed in any way as a result of this incident. In fact, the school day began and ended as normal. (R-59; ER ; Vol. III [Boden Dep. at at Ex. 13]). Consequently, the 2009 incident itself did not cause a material and substantial disruption in the school. Moreover, despite the 2009 incident and Defendants claim that racial tension exists between American and Mexican students at the school, Defendant Boden approved the 17

25 Case: /29/2012 ID: DktEntry: 8 Page: 25 of 55 Cinco de Mayo activities for May 5, (R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]). And to this day, the School District has done nothing to limit these activities on campus. (R-52; ER ; Vol. III [Smith Dep. at at Ex. 5]). Defendant Rodriguez, who was present during the 2009 incident, was asked to compare the 2009 incident with the 2010 incident, and he testified as follows: Q: So the quad area prior to the students coming into your office, was there anything that was happening in the quad area, any disruption compared to what happened in 2009? Was there anything like that occurring at the point when you directed the students to go to your office? A: No. Q: Anything like that in 2009? A: No. Q: So there was no disruption on the campus at that point; is that correct, sir? A: Not that I was aware of, as you compared it to (R-59; ER-340; Vol. III [Rodriguez Dep. at 84 at Ex. 14]). 7 7 According to Defendant Rodriguez s testimony, the 2009 incident involved some Mexican students draping a Mexican flag over their shoulders wearing the flag like a cape. The Mexican students were confrontational. One Mexican student began shouting profanities at some of the white students, who responded to the confrontation by stating, USA, USA. Defendant Rodriguez brought the Mexican student back to his office and counseled him regarding his use of profanity. The Mexican student was not sent home nor disciplined. (See R-59; ER ; Vol. III [Rodriguez Dep. at at Ex. 14]). Defendant Rodriguez testified as follows: THE WITNESS: As I just shared, I pulled minor, first initial J. into my office and had a lengthy conversation with him. Q: Was that the only action that was taken on behalf of the school district towards these the students? A: To the best of my recollection yes. 18

26 Case: /29/2012 ID: DktEntry: 8 Page: 26 of 55 Moreover, as Defendant Boden acknowledged, the American flag is not affiliated with any gangs at the school. (R-59; ER ; Vol. III [Boden Dep. at at Ex. 13 (noting that bandanas are prohibited because they are often associated with gangs, but admitting that he is not aware of any gang that affiliates with wearing the American flag bandana)]). Indeed, the gang activity at Live Oak High School involves students with a Mexican cultural heritage (i.e., Surenos vs. Nortenos), not Plaintiffs. (See R-59; ER ; Vol. III [Rodriguez Dep. at at Ex. 14]). Thus, there is no evidence that Plaintiffs have been involved in gang violence or that the American flag is a symbol related to any gang violence in the School District. V. School District Policy and Guidelines Authorized the Speech Restriction. The School District relies on school administrators, such as Defendants Boden and Rodriguez, to enforce the district s policies, rules, regulations, and guidelines within their respective schools. (R-52; ER-416, ; Vol. III [Smith Dep. at 16, at Ex. 5]; 8 R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER-317; Vol. III [Rodriguez Dep. at 17 at Ex. 1]; R-37; ER ; Vol. III [Answer at 12, 13 (admitting that Defendants Boden and Rodriguez (R-59; ER-302; Vol. III [Rodriguez Dep. at 69 at Ex. 14 (emphasis added)]). 8 The Superintendent, Dr. Wesley Smith, testified on behalf of the School District pursuant to Fed. R. Civ. P. 30(b)(6). (R-52; ER ; Vol. III [Smith Dep. at 8-9 at Ex. 5]; R-52; ER ; Vol. III [Dep. Ex. 16 at Ex. 6]). 19

27 Case: /29/2012 ID: DktEntry: 8 Page: 27 of 55 had the responsibilities of a public employee of the District )]). This includes the district s guideline contained in the Rights and Responsibilities Handbook for Parents and Students (hereinafter Student Handbook ) that prohibits the wearing of clothing that is subjectively deemed disruptive. (R-52; ER-417, 419, ; Vol. III [Smith Dep. at 19, 22, at Ex. 5]; R-52; ER , ; Vol. III [Dep. Exs. 3, 4 at Exs. 7, 8]; R-52; ER-383, ; Vol. III [Boden Dep. at 17, at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). Specifically, the Student Handbook contains a provision within the section entitled School Rules and Behavior Standards that states: Clothing, accessories, insignia (such as bandanas/handkerchiefs, earrings, hair designs), or actions which indicate gang affiliation, create a safety hazard, or disrupt school activities will not be tolerated. Such actions or the wearing and/or possession of these items may be cause for suspension. (R-52; ER-418, 419, 422; Vol. III [Smith Dep. at 20, 22, 26 at Ex. 5]; R-52; ER , ; Vol. III [Dep. Exs. 3, 4 at Exs. 7, 8) (emphasis added)]). The School Rules and Behavior Standards of the Student Handbook set forth a standard of behavior that students at Live Oak High School, including Plaintiffs, were expected to follow on May 5, (R-52; ER-385; Vol. III [Boden Dep. at 21 at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). The School District delegates the authority to enforce this clothing 20

28 Case: /29/2012 ID: DktEntry: 8 Page: 28 of 55 restriction to its school administrators, such as Defendants Boden and Rodriguez. (R-52; ER-420, 421; Vol. III [Smith Dep. at 24, 25 at Ex. 5]; R-52; ER-383, ; Vol. III [Boden Dep. at 17, at Ex. 4]; R-52; ER-322; Vol. III [Rodriguez Dep. at 29 at Ex. 1]). The School District expects its school administrators to exercise their judgment and discretion when enforcing this restriction. (R-52; ER- 420, ; Vol. III [Smith Dep. at 24, at Ex. 5]; R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). However, the School District does not have any guideline, rule, regulation, or policy that defines what it means to disrupt school activities. (R- 52; ER-420; Vol. III [Smith Dep. at 24 at Ex. 5]; R-52; ER ; Vol. III [Boden Dep. at at Ex. 4]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). That determination is left to the subjective judgment and discretion of the administrator enforcing the restriction. (R-52; ER , ; Vol. III [Smith Dep. at 24-25, at Ex. 5]). Similarly, taking preventive steps... is... part of the judgment and discretion that is part of the authority given to the principals in the School District. (R-52; ER ; Vol. III [Smith Dep. at at Ex. 5]; R-52; ER-382; Vol. III [Boden Dep. at 16 at Ex. 4 (acknowledging that he had the authority to take preventive measures to avoid anything that might disrupt the educational environment at the school)]; R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). However, there is no written policy, rule, or regulation 21

29 Case: /29/2012 ID: DktEntry: 8 Page: 29 of 55 that sets forth any criteria to assist a school official in making a decision as to whether it is appropriate to take such preventive measures. 9 (R-52; ER ; Vol. III [Smith Dep. at at Ex. 5]). The School District s clothing restriction was not officially rescinded, modified, or amended in any way following the May 5, 2010 incident. (R-52; ER- 435; Vol. III [Smith Dep. at 55 at Ex. 5]). This restriction, which Plaintiffs are subject to, remains in force today as it did on May 5, (R-52; ER-428, 435; Vol. III [Smith Dep. at 46, 55 at Ex. 5]). Indeed, on May 6, 2010, the Superintendent sent a High importance to All Employee[s] of the School District regarding the Patriotic clothing incident of May 5, (R-52; ER- 428; Vol. III [Smith Dep. at 46 at Ex. 5]; R-52; ER-456; Vol. III [Dep. Ex. 17 at Ex. 10]). In that , the Superintendent, who was specifically referring to the incident involving Plaintiffs, confirmed the following: [W]e do not prohibit patriotic clothing so long as it does not violate our dress code; therefore, students are not to be disciplined for patriotic clothing unless said clothing violates our dress code. (R-52; ER-428; Vol. III [Smith Dep. at 46 at Ex. 5]; R-52; ER-456; Vol. III [Dep. Ex. 17 at Ex. 10) (emphasis added)]). According to the Superintendent, the dress code referred to in his included the restrictions 9 In its press release, the School District acknowledged that [s]chool leaders have to make judgment calls on when to take preventive measures to preempt a possible incident or conflict. (R-52; ER-454; Vol. III [Dep. Ex. 20 at Ex. 9]). 22

30 Case: /29/2012 ID: DktEntry: 8 Page: 30 of 55 set forth in the Student Handbook. (R-52; ER-429; Vol. III [Smith Dep. at 47 at Ex. 5]; see also R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1 (acknowledging that the Student Handbook permits school officials to restrict flag clothing that is considered disruptive)]). In other words, if a school official, based on his or her own subjective judgment and discretion, deems a student s patriotic clothing to be disruptive to the school, without any actual evidence of disruption, the official can take preventive measures and prohibit the student from wearing the clothing which is precisely what happened on May 5, As Defendant Rodriguez acknowledged in his testimony, the restriction on Plaintiffs patriotic clothing was consistent with the School District s dress code as set forth in the Student Handbook. (R-52; ER ; Vol. III [Rodriguez Dep. at at Ex. 1]). Moreover, following the May 5, 2010 incident, the School District did not promulgate any new policies that would secure or protect a student s right to expression on campus in light of the May 5th incident. (R-52; ER-432; Vol. III [Smith Dep. at 52 at Ex. 5]; see also R-52; ER-410; Vol. III [Boden Dep. at 78 at Ex. 4 (acknowledging that he was unaware of any action on the part of the School District to address the issue of students free speech rights on campus following 10 As Defendant Boden admits, the actions he took on May 5, 2010, were taken pursuant to his official duties as Principal at Live Oak High School. (See R-12-1; ER-475; Vol. III [Boden Decl. at 2 (admitting that he took action based on a duty and obligation [he] understood to be inherent to [his] position as Principal )]). 23

31 Case: /29/2012 ID: DktEntry: 8 Page: 31 of 55 the May 5, 2010, incident)]). In fact, the School District does not believe in the first instance that Defendants Boden and Rodriguez violated any student right when they ordered Plaintiffs to remove their patriotic clothing on May 5, (R-52; ER ; Vol. III [Smith Dep. at at Ex. 5]; R-52; ER ; Vol. III [Boden Dep. at 77-78, 80 (finding no need to apologize for his actions) at Ex. 4]; R-52; ER-339; Vol. III [Rodriguez Dep. at 78 (having no concerns that Defendant Boden s direction was going to violate any of the students rights ) at Ex. 1]). Indeed, neither Defendant Boden nor Defendant Rodriguez was subject to any adverse employment consequence as a result of their actions on May 5, (R-52; ER-434; Vol. III [Smith Dep. at 54 at Ex. 5]; R-52; ER-380; Vol. III [Boden Dep. at 14 at Ex. 4]; R-52; ER-348; Vol. III [Rodriguez Dep. at 96 at Ex. 1]). In sum, the School District has taken no formal policy action that would deter a school official from repeating the offense of May 5, 2010, or protect a student from being subjected to such an offense in the future. There were no formal changes to board policy that came about as a result of the May 5, 2010, incident None. (R-52; ER-435; Vol. III [Smith Dep. at 55 at Ex. 5) (emphasis added)]). Any claim by the School District that it has repented or reformed was merely a talking point for the press to deflect all of the negative criticism the School District had received from the public. (See R-52; ER ; Vol. III [Smith Dep. at at Ex. 5 (referring to Deposition Exhibit 19 and testifying as 24

32 Case: /29/2012 ID: DktEntry: 8 Page: 32 of 55 follows: Q: You wanted every employee in the school district to know what [the] district s talking points were with the May 5th, 2010 incident; is that right, sir? A. Must have. )]; R-52; ER-458; Vol. III [Dep. Ex. 19 at Ex. 11 (setting forth talking point claiming that the School District does not prohibit nor... discourage wearing patriotic clothing )]; R-52; ER-408; Vol. III [Boden Dep. at 75 at Ex. 4]; see also R-52; ER ; Vol. III [Smith Dep. at at Ex. 5 (referring to the 5,000 messages received in an eight hour period )]). In the final analysis, to this day, if Plaintiffs or any other student wore patriotic clothing in any school in the School District particularly on Cinco de Mayo 11 and a school official, based on his or her own subjective judgment and discretion, believes that the clothing may cause a disruption (i.e., the patriotic message may offend some students) without evidence of any actual interference with school activities, then the student wearing the clothing is subject to possible suspension. In other words, there is absolutely nothing preventing a repeat of the May 5, 2010 incident, unless this court grants Plaintiffs request for declaratory and/or injunctive relief against the School District. 11 The School District has done nothing to limit or restrict the future celebration of Cinco de Mayo in any of its schools, (R-52; ER ; Vol. III [Smith Dep. at at Ex. 5]), despite claims that this causes tension between the Mexican and American students. 25

33 Case: /29/2012 ID: DktEntry: 8 Page: 33 of 55 SUMMARY OF THE ARGUMENT Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), compels reversal of the district court s decision and the granting of Plaintiffs motion for summary judgment. Contrary to the district court s holding, Tinker does not permit government officials to restrict a student s right to freedom of speech based upon an undifferentiated fear of a disruption. As Tinker makes plain, school officials may not punish a student for the silent, passive expression of opinion that is unaccompanied by any disorder or disturbance on the part of the speaking student. And the First Amendment knows no hecklers veto, even in a school context. Here, the evidence shows, without contradiction, that Defendants restricted Plaintiffs passive expression of a pro-america opinion because they feared it would offend certain Mexican students on Cinco de Mayo. Defendants do not ban the American flag on any other day because it is a racist symbol or because it is affiliated with gang violence it is not. Moreover, Defendants have not limited or restricted the future celebration of Cinco de Mayo on School District campuses. In sum, Defendants have no factual or legal justification for imposing a viewpoint-based restriction an egregious form of content discrimination on Plaintiffs speech in violation of the United States and California Constitutions. 26

34 Case: /29/2012 ID: DktEntry: 8 Page: 34 of 55 Moreover, because Defendants permitted students to engage in expressive conduct that promoted Cinco de Mayo and a pro-mexico viewpoint, while prohibiting Plaintiffs expressive conduct promoting a pro-america viewpoint, Defendants violated the equal protection guarantee of the Fourteenth Amendment. Under the Equal Protection Clause, not to mention the First Amendment itself, the government may not grant the use of a forum to certain views, but deny use to those wishing to express a less favored or more controversial view. Finally, an additional corollary of the prohibition on viewpoint discrimination is the principle that government officials may not possess unfettered discretion to burden or ban speech, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or the viewpoint of the speaker. Here, the restriction at issue provides no objective standards for enforcement, and it permits punishment for the expression of an unpopular view indeed, it permits the prior restraint of such views. As the facts demonstrate, the challenged restriction contains a broad invitation to subjective and discriminatory enforcement in violation of the Due Process Clause of the Fourteenth Amendment. In the final analysis, in addition to nominal damages, declaratory and injunctive relief are appropriate because Defendants are free to return to their old 27

35 Case: /29/2012 ID: DktEntry: 8 Page: 35 of 55 ways and, perhaps most important, the public has an interest in having the legality of Defendants actions settled. ARGUMENT I. Standard of Review. This court reviews an order granting summary judgment de novo, drawing all reasonable inferences supported by the evidence in favor of the non-moving party. See Porter v. Cal. Dept. of Corrections, 383 F.3d 1018, 1024 (9th Cir. 2004). Moreover, because this case involves the violation of First Amendment rights, this court ought to conduct an independent examination of the record as a whole, without deference to the trial court. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 567 (1995). This is so because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and [this court] must thus decide for [itself] whether a given course of conduct falls on the near or far side of the line of constitutional protection. Id.; see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (noting that in cases raising First Amendment issues appellate courts must make an independent examination of the whole record in order to ensure that lower court decisions do not infringe free speech rights). 28